The Supreme Court of South Carolina

The State, Petitioner,

v.

Gary Grovenstein, Respondent.

ORDER

The opinion heretofore filed in this case, Opinion No. 24933, filed April

192 1999, is withdrawn and the attached opinion is substituted in its place.

Respondent's Petition for Rehearing is denied.

Columbia, South Carolina

June 1, 1999

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THE STATE OF SOUTH CAROLINA

In The Supreme Court

The State Petitioner,

v.

Gary Grovenstein Respondent.

ON WRIT OF CERTIORARI TO THE COURT OF

APPEALS

Appeal From Aiken County

Henry F. Floyd, Circuit Court Judge

Opinion No. 24933

Heard March 4, 1999 Refiled June 1, 1999

REVERSED AND REMANDED

Attorney General Charles Molony Condon, Deputy

Attorney General John W. McIntosh, Assistant

Deputy Attorney General Salley W. Elliott, and

Assistant Attorney General G. Robert DeLoach, III,

all of Columbia, and Solicitor Barbara R. Morgan, of

Aiken, for petitioner.

J. Edward Bell, III , of Bell and Moore, of Sumter,

and Robert J. Harte, of Aiken, for respondent.

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WALLER, A.J.: We granted a writ of certiorari to review the Court of

Appeals' opinion in State v. Grovenstein, 328 S.C. 548, 493 S.E.2d 865 (Ct. App.

1997). We reverse.

FACTS

Grovenstein was convicted of two counts of first degree criminal sexual

conduct (CSC) with a minor and one count of second degree CSC with a minor;

he was sentenced to a total of forty years imprisonment.

At the conclusion of Grovenstein's trial, the jury was sent to the jury room

to begin deliberations. Twenty to thirty minutes later, it was discovered that

the alternate juror, Sheila Coleman, had been sent to the jury room with the

remaining jurors.1 She was removed and questioned by the trial court. She

advised the judge that the jury had taken one "preliminary vote" as to where

everybody was going to stand, and in which she had participated. Coleman also

advised the court the jury had discussed the case in her presence, "a little bit...

not much."

The trial court called the remainder of the jury to the courtroom and

instructed them that the alternate should have been removed, and that it was

the remaining jurors' responsibility to reach a verdict without regard to

anything the alternate had said or done. The court then inquired as follows:

Is there any member of the jury panel who feels they can not follow

that instruction or have been influenced by any... in any manner by

Ms. Coleman while she was in the jury room for some twenty to

thirty minutes? Any member of the jury panel feel that they would

be influenced by her presence or any action in the jury room? If so,

I want you to tell me now because I need to know that. Anyone?

(No Response).

Any member of the jury panel has any difficulty in disregarding the

fact... any action, or word, or deed done during the ... while she was

in the jury room during that twenty to thirty minute period of time?

Any juror can not disregard that?

... be discharged upon the final submission of the case to the jury."

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(No Response).

Any juror... and I'm assuming no response means you can do that.

Any member of the jury panel who can not follow the instruction

that you twelve must make a unanimous decision in this case? If

so, please indicate now.

(No response).

Both the defense and the state declined the court's invitation for further inquiry

or instructions. The jury was returned to the jury room at 11:15 am and, four

and one-half hours later, returned with guilty verdicts at 3:45 PM.

The Court of Appeals reversed Grovenstein's convictions, finding the

presence of the alternate juror in the jury room during deliberations entitled

him to a presumption of prejudice which the State had failed to rebut.

ISSUES

1. Did the Court of Appeals properly adopt a "presumption of

prejudice" analysis?

2. Were the trial court's curative measures sufficient to remedy any

error?

1. PRESUMPTION OF PREJUDICE

In State v. Bonneau, 276 S.C. 122) 276 S.E.2d 300 (1980), this Court held

it was "incumbent on the appellant to ... prove that he was denied a fair trial"

due to an alternate's presence in the jury room. The Court of Appeals found

Bonneau factually dissimilar such that it was not dispositive.

In Bonneau, the trial court instructed jurors not to begin deliberations

until it had sent in the indictments and exhibits. The jury, including the

alternate, was then sent out of the courtroom for approximately 10-15 minutes

while the court discussed its charge with the attorneys. The defendant

appealed, contending the presence of the alternate had deprived him of a fair

trial. This Court held the alternate's brief presence had not deprived Bonneau

of a fair trial, noting that the remaining members of the jury.iiad continued to

deliberate 45 minutes after the alternate was excused. Significantly, in

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Bonneau, we recognized, but rejected, authority in other jurisdictions holding

the presence of an alternate juror to be per se reversible error. Although the

Court of Appeals recognized Bonneau as "an implicit rejection of the reversible

error per se rule," 493 S.E.2d at 871, it nonetheless saw fit to apply a

presumption of prejudice to Grovenstein. This is simply in contravention of

Bonneau's specific holding that it is incumbent on the defendant to demonstrate

he was denied a fair trial by the presence of an alternate. We see no reason to

limit Bonneau's basic holding that a defendant must establish prejudice. We

have consistently required defendants to demonstrate prejudice due to improper

jury influences.2

Moreover, subsequent to issuance of the Court of Appeals' opinion in this

case, this Court decided State v. Aldret, 333 S.C. 307,509 S.E.2d 811 (1999) and

State v. Kelly, 331 S.C. 132, 502 S.E.2d 99 (1998). Aldret involved jury

misconduct in the form of premature deliberations. We held such misconduct

did not warrant automatic reversal, and that the burden was on the defendant

to demonstrate prejudice. In Kelly, we addressed the impact of a religious

pamphlet circulated in the jury room during the penalty phase of a capital trial.

We stated, "unless the misconduct affects the jury's impartiality, it is not such

misconduct as will affect the verdict." In both Aldret and Kelly, the defendant

failed to meet his burden of demonstrating prejudice.

255 (1989) and State v. Carrigan, 284 S.C. 610, 328 S.E.2d 119 (Ct.App.1985),

found a presumption of prejudice analysis consistent with other South Carolina

cases. We disagree. Wasson specifically held the burden was on the defendant

to show not only error, but resulting prejudice; Carrigan held the mere fact that

some conversation occurs between a juror and a witness for the State does not

necessarily prejudice a defendant. These cases merely stand for the proposition

that if some extraneous influence is brought to the trial court's attention during

trial, then it is incumbent on the trial judge to attempt to ascertain whether

such influence was prejudicial. The mere fact that the court is required to

examine an acknowledged error for prejudice is not, however, tantamount to a

presumption of prejudice. Further, in the case relied on by Wasson, State v.

Salters, 273 S.C. 501, 505, 257 S.E.2d 502, 504 (1979), this Court specifically

recognized that " [s]uch a protective measure is required only upon a reasonable

showing of the potential prejudicial effect of the publicity." Accordingly, we

disagree with the Court of Appeals' assertion that case law, has generally

applied a presumption of prejudice analysis to improper jury influences.

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We see no reason to distinguish between improper jury influences in the

form of alternate juror participation, and influences such as the premature

deliberations in Aldret, or the religious pamphlets in the jury room during the

sentencing phase of Kelly.3 Accordingly, we hold the burden was on

Grovenstein to demonstrate prejudice, and the Court of Appeals adoption of a

presumption of prejudice standard is reversed.4

2. CURATIVE INSTRUCTIONS

Finally, the Court of Appeals held the state had not met its burden of

rebutting the presumption of prejudice. Given our holding above, the burden

was not on the state and we therefore reverse the Court of Appeals' holding on

this issue. Moreover, we find the trial court's inquiry and instructions were

sufficient to remedy the error.

An instruction to disregard incompetent evidence is usually deemed to

have cured the error. State v. Reid, 324 S.C. 74, 476 S.E.2d 695 (1996).

Moreover, jurors are presumed to follow the law as instructed to them. State

v. Ard, 332 S.C. 370, 505 S.E.2d 328 (1998).

17702 1780, 123 L.Ed. 2d 508 (1993), the United States Supreme Court

examined the presence of an alternate juror during deliberations as an external

influence on the jury, akin to which the Court had generally analyzed for

prejudicial impact. 507 U.S. at 738, 113 S.Ct. at 1780.

4 Our holding is consistent with those of numerous federal courts which

uphold convictions notwithstanding actual participation by an alternate juror.

See United States v. Hill, 91 F.3d 1064 (8th Cir. 1996)(allowing alternate juror

to deliberate during first two and one-half hours of deliberations did not entitle

defendant to new trial as court would not presume prejudice); United States v.

Bendek, 146 F.3d 1326 (11th Cir. 1998), cert. denied 1999 WL 25156 (Feb. 22,

1999)(permitting alternate to deliberate and return verdict with remaining

jurors did not warrant reversal as alternate's presence did not affect integrity

of proceedings); United States v. Acevedo, 141 F.3d 1421 (1 1th Cir. 1998), cert.

denied 1999 WL 79979 (Feb. 22, 1999)(where two alternates deliberated and

returned verdict with jury, trial courts instructions that regular jurors were to

begin deliberations anew removed any threat of prejudice,- notwithstanding

remaining jurors reached guilty verdict after "re-deliberating" for 5 more

minutes).

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Here, when the trial court discovered the alternate's presence in the jury

room, she was immediately removed and questioned regarding her

participation. She advised the jury had taken one preliminary vote in which

she had participated, and had discussed the case "a little bit... not much." The

trial court then called the jury to the courtroom and instructed that it was the

jury's responsibility to reach a verdict without regard to anything the alternate

had said or done and then thoroughly inquired as to whether the jurors could

put aside anything Coleman had said or done. Receiving no response, and with

no further request for inquiry from counsel,5 the jury was permitted to return

to its deliberations; after deliberating for another 4&1/2 hours, the jury

returned a guilty verdict. Under these circumstances, we find the trial court's

inquiry and instructions to the jury were sufficient to cure any error. Accord

United States v. Acevedo, 141 F.3d 1421 (11th Cir. 1998)(dismissal of alternates

permitted to deliberate and render verdict with jury not prejudicial where trial

court instructed jury, minus the alternates, to begin deliberations anew).

For the, benefit of bench and bar, we advise trial courts of this state, upon

discovering an alternate has inadvertently been permitted into the jury room,

to undertake precautionary measures similar to those taken by the trial court

in this case. Initially, the trial judge should remove the alternate and inquire

as to the extent of that juror's participation. The court should then conduct

such voir dire as is necessary of the remaining jury panel, similar to that

recently set forth by this Court in Aldret, to ascertain prejudice and, if

practicable, tailor instructions requiring the jury to disregard the alternate's

input and, in essence, requiring the jury to begin deliberations anew. If the

trial court finds deliberations have proceeded too far, or that the alternate's

impact upon remaining jury members may not be remedied, a mistrial should

be had and a new trial ordered.

CONCLUSION

We hold the burden is on the defendant to demonstrate prejudice from the

presence of an alternate juror during jury deliberations, and the Court of

supra, on the grounds that, there, jurors were individually voir dired to

ascertain the impact of the religious pamphlet. However, Grovenstein declined

the trial court's invitation for further inquiry or instructions. Accordingly, he

may not now complain. Aldret, supra.

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Appeals erred in adopting a "presumption of prejudice" standard. Further, we

find Grovenstein failed to meet his burden of demonstrating prejudice.

Accordingly, the Court of Appeals' opinion is reversed and remanded.6

REVERSED AND REMANDED.

TOAL, A.C.J., MOORE, BURNETT, JJ., and Acting Associate

Justice James C. Williams, Jr., concur.

address his remaining issues. Accordingly, we remand to the Court of Appeals

for consideration of the other issues raised by Grovenstein.

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